Domestic partnership case headed to state’s high court

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The Wisconsin Supreme Court in this session will have to decide if domestic partnerships in the state are now essentially the same as marriage.

It is a key question in Julaine K. Appling et. al. v. James E. Doyle et. al., 2011 AP 1572. It is one of the first substantial cases that will be presented to the court in the aftermath of the U.S. Supreme Court’s June decisions in United States v. Windsor and Hollingsworth v. Perry.

The case will examine whether the legal status of domestic partnership enacted in 2009 cannot stand due to the 2006 Wisconsin Constitution Article XIII, Section. 13, which limits the definition of marriage to one woman and one man. The article also prohibits any other relationship from receiving legal status “if it was substantially similar or the same” as marriage.

The circuit court denied summary judgment and ruled in favor of the defendants in August 2011. The court found Appling failed to show that domestic partnerships are the same as traditional marriages. The appellate court affirmed the circuit court decision in December 2012.

Wisconsin voters passed the article amendment in 2006 by a 19-point margin. According to the amendment, “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

The purpose of that publicly ratified language when it was passed, according to Appling’s counsel’s argument, was to “address the building block of Wisconsin society – the institution of marriage.”

Three years later, the Wisconsin Legislature enacted Wis. Stat. Ch. 770, effectively creating domestic partnerships in the state. Appling immediately filed suit, claiming Ch. 770 was unconstitutional because it was contrary to the explicit language of the article amendment.

Wisconsin’s Office of the Attorney General also deemed Chap. 770 unconstitutional and refused to provide representation in its defense. The Fair Wisconsin advocacy group and 10 other defendants were allowed to intervene.

Dane County Circuit Judge Daniel R. Moeser denied Appling’s motion for summary judgment and granted summary judgment to Fair Wisconsin, ruling domestic partnerships are not “substantially similar” to marriage.

There is a high threshold of evidence necessary to prove legislation is unconstitutional, according to the circuit court.

Referencing Guzman v. St. Francis Hospital, the court ruled the plaintiff must do more than just suggest the law could be, or even probably is, unconstitutional. The law has to be unconstitutional beyond a reasonable doubt.

“The presumption of statutory constitutionality is the product of our recognition that the judiciary is not positioned to make the economic, social and political decisions,” according to the court.

On appeal, the appellate court described its obligation to interpret the amendment “to give effect to the intent … of the people who adopted it,” which is determined by reviewing three sources.

The first looks to the plain meaning of the amendment as written. The second relies on an extensive review of the legislative history of the amendment, including debates, discussions and political interchange. The final source examines the earliest instances of how the Legislature has interpreted the amendment after it was passed.

Appling’s attorneys contended Ch. 770 made domestic partnerships “dangerously close” to marriage, giving them an equivalent or at least substantially similar “legal status.”

To correctly assess the “legal status,” the circuit court compared key components of marriage and domestic partnerships in Wisconsin, including the legal name of each status, the legal requirements regarding who can assume the status, the legal procedure for assuming the status and the legal procedure for terminating the status.

The court also determined its ruling would rely on the “plain meaning” of the constitutional amendment’s use of “substantially similar,” namely, that the Marriage Amendment “prohibited only the creation of or recognition of legal status that are almost identical to marriage.”

The appellate court, like the circuit court, found Appling had fallen far short of the necessary proof to prevail and found that domestic partnerships and marriage in Wisconsin following the passage of Chap. 770 are not “substantially similar.“

One significant infirmity of Appling’s case, according to the appellate court, was the argument that the “substantially similar” comparison should apply only to the “entry and formation” of marriage and domestic partnerships, and not to the rights and obligations.

“Appling’s ‘legal status’ argument does not comport with common sense,” according to the appellate court. The only reasonable conclusion based on language in the amendment is that “voters thought about ‘legal status’ of marriage and domestic partnerships as a whole picture,” according to the court, “including eligibility, formation, termination, along with rights and obligations.”

In addition, the appellate court found other second source evidence strongly favored Doyle. Appling’s own statements, according to court documents, along with those of other article amendment supporters during the ratification process, indicated the amendment was trying to ban specific types of domestic partnerships, rather than all of them and the benefits.

The appellate court also found that the limited legislative activity interpreting the marriage amendment after it was ratified was the very legislation that created Ch. 770 and that Legislature believed it was passing a constitutional law.

However, given that the recent U.S. Supreme Court decision struck down California’s ban on gay marriage in Hollingsworth v. Perry, there are questions as to how that decision might affect this case before the Wisconsin Supreme Court.

Commentators have said the U.S. Supreme Court decision’s immediate effect on similar gay marriage bans around the country will be minimal, given that the California ban in Perry was overturned on a technicality. The U.S. Supreme Court’s opinion did not cover the full, separate topic of whether state laws banning gay marriage can stand in the face of the federal rejection of the 1996 DOMA law or state and federal equal protection provisions.

However, that does not mean counsel for Doyle will not bring up the decision and use it as a further means to encourage the Wisconsin Supreme Court to join the appellate court in affirming the circuit court decision.